Thursday, October 03, 2002
Whither Election Reform after New Jersey?
Senator Kit Bond (R-MO) took the Senate floor Tuesday to urge House-Senate conferees to produce an election reform bill prior to the likely October 11th adjournment. Senator Bond should be careful what he wishes for, as demonstrated by the events in the New Jersey Senate race this week. Today's ruling by the New Jersey Supreme Court that, "in the interest of full voter choice," New Jersey Democrats could replace a candidate likely to lose after the statutory deadline had passed.
If this sounds familiar, it should. Recall that, in 2000, the Florida Supreme Court decided to discard statutory rules of all kinds and created an "intent of the voter" standard out of whole cloth.* Effectively, if the law hindered the prospects of a Democratic victory, the law would be ignored.
The New Jersey Supreme Court ruling is a wake-up call to the Bush Administration and House Republicans in precisely the same way that the attack on Fort Sumter was a wake-up call to the Lincoln Administration. Any election reform bill that Congressional Democrats deem satisfactory will be long on procedure and short on finality -- at least in any election in which a Republican prevails.
It may be hard for those of us who watched Judge Robert Bork destroyed and Justice Clarence Thomas nearly so to believe, but there are actually people who think the biggest problem today is a lack of fighting spirit among liberal Democrats, e.g. "Why did Gore's side so consistently fail to act as ruthlessly as Bush's team in Florida?"
I've written about the dangers of the so-called "election reform bill" both last year and last month.
Mickey Kaus aptly summed up what happened in New Jersey on Wednesday:
The operative rule seems to be: "We're going to do what we think is right unless there's an incredibly clear black-letter statute saying we can't. And then we can always declare it unconstitutional." Does the elected legislature have any role to play here at all? (It's ironic that the court pays such attention to finding what it thinks is the most democratic way to pick a lawmaker, even as it brushes aside the actual work-product of those democratically-elected lawmakers, namely statutes.)
*An excellent short summary of what the Florida Supreme Court actually did was part of Gregg Easterbrook's "Tuesday Morning Quarterback" column last week:
But also there's no doubt the Florida Supreme Court was politically motivated. Bush wins the original tally, then wins the mechanized recount. The Florida Supreme Court, as brazenly pro-Gore as the Washington court was brazenly pro-Bush, steps in and imposes a hand recount whose terms openly defy the Electoral Count Act of 1877, which Congress passed after the Hayes-Tilden election specifically with this situation -- disputed slate in one state that can determine the national outcome -- in mind. Bush then wins the hand recount, making him 3-for-3. Meanwhile, United States Supreme Court issues its first ruling, saying the Florida judges don't seem to understand the Electoral Count Act and ordering the Sunshine State court to explain its reasoning. The Florida judges refuse! Given a direct order by the United States Supreme Court, the Florida Supreme Court repudiates the United States Supreme Court, since the Florida judges know they can't give any coherent explanation of their first set of orders.
TMQ has always thought the Florida court's snub of the Supreme Court (Florida judges issued an explanation only many weeks later, when the dispute was over and no one cared) was the overlooked momentum-changer in the whole recount mess. How could anyone with a One L understanding of the Constitution think a state court could simply refuse to answer a direct instruction from the United States Supreme Court? Rebuffing a direct instruction from the United States Supreme Court made several Supremes think the Florida Supreme Court was a bunch of buffoons. Sandra O'Connor, prominently, swung to the end-the-recounts position when she concluded that the Florida Supreme Court was under the control of buffoons.
P.S. Easterbrook's TMQ column is must reading for any football fan.
|posted by Jim on 2:02 AM|
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